The Third Department determined summary judgment was properly granted to defendants in a lead-paint exposure case. Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling paint in the apartment:
To raise a triable issue of constructive notice, plaintiff was required to show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment. Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants’ awareness that paint was peeling in the apartment. Cunningham v Keehfus, 516733, 3rd Dept 12-26-13
The Third Department affirmed the same result in another lead-paint exposure case:
Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in the basement apartment, had the right to enter the apartment to make repairs, and did so. However, he testified that he “didn’t know anything about lead poisoning” before the October 1990 inspection, did not remember peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the building before he purchased it. This testimony was sufficient to establish on a prima facie basis that defendant did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish triable issues of fact… .
…[T]he record includes no evidence that the prior owner told defendant about the building’s previous lead problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his education and reading skills were limited – was sophisticated in the ownership and maintenance of rental properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues … Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd Dept 12-26-13